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  • Writer's pictureJoanne Jacobs

Title IX twisted: From soccer to sex harassment

Once a “reasonable equality-of-opportunity law,” Title IX has gone weirdly astray, writes Christina Hoff Sommers. “What explains the scorched-earth campaign against men’s sports carried out in its name?” asks Sommers, the author of Who Stole Feminism? and The War Against Boys. “Why has it been used to deny students and professors due process and free speech in sexual harassment cases?”

She finds the answer in Shep Melnick’s book, The Transformation of Title IX: Regulating Gender Equality in Education.

“Melnick’s calm, lucid analysis shows how a law once intended to increase educational and athletic opportunities for girls and women came to diminish those opportunities for men and women alike,” Sommers writes.

The U.S. Department of Education’s Office for Civil Rights (OCR) changed Title IX rules without going through the review process, writes Melnick, a Boston College political science professor. Every change was labeled a “clarification” or “guidance.”

When federal judges treated these “clarifications” as settled law, OCR cited the changes as court-approved and went farther.

Gender advocacy groups used their zeal and networking skills to overwhelm the education establishment.

These advocates insisted on “proportionality”—if a college’s student body was 60 percent female, then 60 percent of the varsity athletes should be female. Anything less was proof of continuing discrimination. And rock climbing, yoga, and dance did not count. For the activists, Title IX was not an equal opportunity law; it was a mandate to change conventional understandings of what it means to be a man or a woman. . . . Colleges and universities generally have far more female than male students, yet far fewer women than men aspire to participate in varsity athletics. To keep their football teams and avoid losing even more male wrestlers, baseball players, and swimmers, most schools have opted to devote a greater share of their athletic budgets to varsity sports.

In 2011, OCR turned to sexual harassment.The U.S. Supreme Court’s 1999 ruling, which defined actionable harassment as behavior “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school,” notes Sommers. Instead, OCR’s “Dear Colleague letter” told colleges to define sexual harassment as  “unwelcome conduct of a sexual nature” and use a “preponderance of evidence” to determine guilt.

OCR used complaints to “trigger a full-scale, multi-year investigation into the school’s ‘sociocultural environment,” writes Sommers. “By the summer of 2017, OCR was investigating the sociocultural climate of hundreds of schools.”

Schools have now developed elaborate “sex bureaucracies” to educate, monitor, train, investigate, and punish. Harvard has 50 full- and part-time Title IX coordinators. Yale has 30. Swarthmore College—with only 1,500 students—has a network of Title IX deputy coordinators, fellows, investigators, and advisers. On campuses throughout the country, students and faculty are now routinely denied due-process rights. Hundreds of students, mostly young men, have been subject to kangaroo courts and expelled from school.

Education Secretary Betsy DeVos has rescinded the April 2011 Dear Colleague letter and promised “to replace it with rules developed through the required open process,” writes Sommers.

Melnick hopes to restore due process and return Title IX to its original purpose, expanding educational opportunities.

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